HKSAR v. NG KIN HA

HCMA242/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.242 OF 2004

(ON APPEAL FROM ESCC 3243 OF 2003)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant was convicted of attempted fraud, contrary to section 16A(1)(b) of the Theft Ordinance, Cap.210 and was sentenced to four months' imprisonment. His ground of appeal against conviction is simply that it was against the weight of evidence and his ground of appeal in respect of sentence is that it was too severe.

2. So far as his conviction was concerned, the facts found by the magistrate were that at the material time the appellant was a civil servant earning $18,140 a month. He owed debts to some 22 various banks and finance companies totalling $316,392.84. His repayments of those debts totalled $13,893 per month.

3. On the charged date, the appellant went to the JCG Finance Co. Ltd ("the company") to obtain a loan for $165,000. The magistrate apparently accepted that the loan of $165,000 may have been a pre-assessed or pre-approved loan where existing borrowers were able to obtain an increase in their existing loans. At the time he went to the company the appellant had a current loan with the company in the amount of $140,000, and the loan of $165,000 was really an extension of that existing loan facility. After paying off his still outstanding principal of the earlier loan, the appellant received a sum of $46,030.

4. The employee of the company who dealt with the appellant's loan application was PW2. The magistrate accepted PW2's evidence that, although he could not remember dealing with the appellant in particular, he could give evidence as to his normal practice and in that regard he said he would have filled in the details on the loan application form from information provided by the appellant and from information available to him on the appellant's file. One of those details on the form was a recorded answer of "No" in PW2's handwriting to a question asked on the form as to whether the applicant had any liability due to other banks or finance companies. It was that recorded answer which was the basis of the prosecution case. PW2's evidence was that after completing the form he would have provided it to the appellant to read before the appellant signed it.

5. The magistrate accepted that if the appellant had informed the company through PW2 that he had debts with other finance institutions or banks in the amount that he had, then the company's loan policy would have inevitably resulted in the refusal of the appellant's loan application.

6. The appellant was represented at trial. He did not give evidence but in cross-examination and in his record of interview his case was that while making the loan application he was never asked whether he owed money to other finance companies, and he was never aware of the recorded answer of "No" to that question contained in the loan application form as he did not read that form in detail before he signed it.

7. In respect of the appellant's case the magistrate said :

"The defendant is a mature person, who has served in the government for many years. The present application form was an important document affecting his personal finance with immediate and very substantial effect. I find his claim, as stated in his record of interview, Exh. P24, of paying little or no attention to the entries in the columns filled out by the officer on his behalf to be incredible. I find he had read and understood the entire application form as completed by PW2 on his behalf, including the part on declaration of truthfulness and knowledge of JCG's being induced by the information given by him, before he signed and pocketed the cheque. He had not asked to amend any of the entries therein."

8. The magistrate was aware that it was PW2's evidence was that part of the information on the loan application form may have been taken from the appellant's previous loan documentation. But even if the answer "No" to the question as to whether the appellant had any outstanding loans with other institutions came from that previous loan documentation, the magistrate was satisfied the appellant had read and understood the form. That evidence was not undermined or contradicted in any way by the appellant's own oral evidence because the appellant had elected not to give evidence but had simply relied upon the contents of his largely exculpatory record of interview.

9. In his Statement of Findings the magistrate also considered the appellant's primary criticism of the reliability of PW2. That criticism focused on PW2's inability to recollect the particular dealings he had with the appellant, though other challenges were also made as to PW2 not understanding all of the terms used on the loan application form. In regard to the appellant's challenge to PW2's reliability as a witness, the magistrate said :

"I find no substance in the attack on PW2's credibility and reliability. He is not familiar with the pre-assessed or pre-approved loan. This does not, however, affect his evidence as to the normal practice he invariably followed in handling the form, Exh. P15, on all occasions, inclusive of the present case. Most importantly, he would let the applicant read the entire form and amend, if necessary, before signing. His evidence is clear and straightforward. He is honest with what he did not know, such as the meaning of various entries in the CIS record, which had to be retrieved for his superior. I accept his entire evidence to be true and accurate."

10. In my judgment the magistrate carefully assessed the evidence as it was before him and came to a reasoned conclusion that PW2 was a reliable and truthful witness. The magistrate was in the best position to assess the credibility of the witnesses before him. His conclusion as to PW2's reliability was open to him on the evidence.

11. It may be that if PW2's evidence had stood alone, it would not have been found to be enough. But his evidence was supported by the declaration on the loan application form, in English and Chinese, signed by the appellant to the effect he had read the contents of the form and they were correct.

12. Once the magistrate then accepted PW2 as reliable and truthful, then there was in my view a sufficiency of evidence upon which to found a conviction.

13. Further, as a matter of reality, it must have weighed heavily on the appellant's mind during the process of making the loan application that he was already indebted to a large number of banks and finance companies for an amount equivalent to nearly two years of his income. It is difficult to conceive how in such circumstances that matter would not have prompted the appellant to pay particular attention to that part of the loan application form which dealt with debts to other institutions and so to have knowledge of the entry on the form which in effect denied any such debts before he signed it as being correct.

14. The appellant's appeal on the basis there was no sufficient evidence against him cannot succeed. I might add that even though the appellant received the money the subject of the application, no complaint can be made of the magistrate convicting him of an attempt in relation to the substantive offence. The magistrate was simply not satisfied the prosecution had provided sufficient evidence proving that the company had acted upon the particular misrepresentation contained in the loan form in advancing the appellant the money he received.

15. The appeal against conviction is dismissed.

16. I turn now to the appellant's appeal against sentence.

17. The appellant at the time of sentence was a 39 year-old civil servant. He worked as an Assistant Hawker Control Officer since 1995. He has a mainland wife and a daughter. He had a clear record.

18. The magistrate said this in imposing sentence :

"In the present case, I take into account the defendant's clear record, his personal and family background. On the basis that it was an attempted offence, I take 4 months' imprisonment as the starting point. There are no effective mitigating factors. Nor are there any exceptional circumstances for suspending this term of imprisonment. The present facts are too serious for a community service order. So I sentenced him to 4 months' imprisonment."

19. Even accepting that the appellant would actually receive a cash sum of only $46,030, in my view, the magistrate cannot be criticised for imposing a sentence of immediate custody for the reasons he gave. However, it seems to me that the previous good character of the appellant cannot be dismissed as not being an effective mitigating factor. Some credit is allowable to an offender who has a history of stable employment and family life. Accordingly, I order the present sentence to be set aside and substituted by a sentence of 14 weeks' imprisonment.